J. G. Bergdoll, et al. v. The York Water Co., et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John G. Bergdoll, and Linda E. Bergdoll, Appellants v. The York Water Company, City of York, Hartford Insurance Company and Verizon BEFORE: : : : : : : : : : No. 2169 C.D. 2006 Argued: December 11, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: April 1, 2008 John G. Bergdoll and Linda E. Bergdoll (Appellants) appeal from a decision of the Court of Common Pleas of York County (trial court) which denied Appellants post-trial motions, after it had denied Appellants motion for summary judgment, granted Hartford Insurance Company s (Hartford) motion for summary judgment and dismissed Appellants complaints against Hartford with prejudice. The trial court also denied Appellants motion to amend their complaint to join Verizon and granted the motion which was filed by Hartford, the York Water Company (York Water) and the City of York (City)(Collectively, Appellees), to strike Appellants praecipe for writ of summons to join Verizon. The trial court further granted York Water s and the City s motions for compulsory non-suit and dismissed Appellants complaint. We affirm. Appellants are the owners of property located at 24 South Newberry Street (Newberry Street property) and 300 West Market Street (Market Street property) in York. The Market Street property is on the corner of Market Street and South Newberry Street. The Newberry Street property is on the same block as the West Market Street property, only it corners on South Newberry Street and Mason Avenue. Market Street and Mason Avenue run parallel to each other and both are perpendicular to South Newberry Street. On January 11, 2001, water entered the building on the Newberry Street property. An employee of Appellants, who had an office in the building on the Newberry Street property, entered the building to discover a one inch accumulation of water on the floor. Appellants notified York Water on January 15, 2001. On January 15, 2001, York Water received a call to dispatch requesting York Water to check for possible leakage in a water main on South Newberry Street. On January 16, 2001, York Water commenced a search, discovered a break in the 96 year old cast iron water main under Mason Avenue, approximately 127 feet west of Appellants building on South Newberry Street and repaired it. In March of 2001, the City was notified that there was a sewer backup at Appellants Market Street property. The Market Street property was served by a sewer lateral that extended from Mason Avenue to the Market Street property. The sewer line was about 250 feet from the Market Street property.1 The City initially denied that the sewer lateral existed at Mason Avenue. 1 A sewer line is the main sewage pipe line and a sewer lateral is a pipe line that runs from the sewer line to a person s home or business. 2 The City instructed Appellants, at their own expense, to dig in the yard and patio and under the sidewalk of the Market Street property. Various probing holes were made to find a supposed lateral under South Newberry Street to the east of the Market Street property. No lateral was found on South Newberry Street. However, Appellants did find the lateral running to Mason Avenue and such lateral had other adjacent properties connected to it. After extensive digging and probing, Appellants discovered the clog in the sewer line under Mason Avenue. The Appellants sewer lateral was eventually moved and linked to a line running under South Newberry Street, due to the damage to the lateral running to Mason Avenue. Appellants filed an informal complaint with the Pennsylvania Public Utility Commission (PUC) without resolution. On November 27, 2001, Appellants filed a formal complaint against Appellees. Appellants alleged that they suffered water damage to their property and business at the Newberry Street property, including the fact that water continued to accumulate and cause similar damage to the interior of the Newberry Street building. On January 7, 2003, Appellants submitted a praecipe to the trial court for appointment of an arbitration panel which was held and, on September 11, 2003, an award was issued in favor of Appellees. On October 8, 2003, Appellants filed a notice of appeal from the arbitration.2 2 On appeal from the trial court appointed arbitration panel s decision, the trial court hears the matter de novo. Pa. R.C.P. No. 1311. A trial court s de novo review entails the: full consideration of the case anew as if it was not heard before and no decision had been previously rendered. The reviewing body is in effect substituted for the prior decision-maker and redecides the case. In conducting a hearing de novo, the tribunal hears the (Footnote continued on next page ¦) 3 On November 26, 2003, Appellees filed a motion for summary judgment. On May 18, 2004, the trial court denied all motions for summary judgment and issued an order scheduling a preliminary pre-trial conference, which was held on February 24, 2005. On March 21, 2005, the Appellees filed a joint motion to exclude Appellants experts. On March 28, 2005, Appellants filed a response, a motion for summary judgment against Hartford Insurance, a motion to amend their complaint in order to join Verizon, a motion to compel discovery and various briefs in support thereof.3 On October 19, 2005, the trial court denied Appellants motion for summary judgment, granted Hartford s motion for summary judgment, dismissed those counts of Appellants complaint which addressed Hartford with prejudice and denied Appellants motion to amend their complaint. The trial court further granted in part and denied in part York Water s objections to Appellants interrogatories and request for production of documents, ordering Appellees to provide Appellants the information requested in interrogatories (9) and (10), and denied Appellants motion to compel discovery and impose sanctions. The trial court also denied all requests to exclude expert witnesses and ordered the (continued ¦) matter in its original, not appellate, jurisdiction. (Citations and footnote omitted). Millcreek Manor v. Department of Public Welfare, 796 A.2d 1020, 1029 (Pa. Cmwlth. 2002). The hearing was held before the trial court and a jury. 3 Appellants alleged that Hartford, the insurer of Appellants property, erred in denying coverage for loss as a result of the flooding. Appellants Motion for Summary Judgment against Hartford, March 28, 2005, at 1-2; Reproduced Record (R.R.) at 44a-45a. Appellants allege that Verizon may have caused the water main break by pouring cement over the water main at the location of the break. Appellants Motion to Amend Complaint and to Join Defendant Verizon, March 28, 2005, at 1-2; R.R. at 40a 41a. 4 remaining parties to provide one another with the identity of all experts, a summary of that expert s expected testimony, resume and/or curriculum vitae. Thereafter, various briefs, motions and praecipes were filed by both parties. Appellants filed a motion in limine asking the trial court to rule on whether Charles J. Kelly, III, Phillip Stover and Robert J. Bissey, Jr. would be able to testify at the trial and, if so, to what extent. Their testimony at the arbitration hearing was attached to the motion and considered by the trial judge to be the basis of Appellants request for ruling on their qualifications. On January 27, 2006, the trial court entered an order permitting Bissey to testify as an expert but limited the testimony of Kelly and Stover. At the Pre-Trial Conference on March 31, 2006, Robert Johnson was first announced as an expert witness for Appellants following which, counsel for York Water made a written request to Appellants for an expert report from Johnson.4 On April 11, 2006, the trial court amended the Pre-Trial Order of March 31, 2006, to incorporate into the record the request by counsel for York Water for an expert s report from Johnson and ordered Appellants to produce Johnson s written report within four weeks. Appellants submitted a document entitled Plaintiff s Expert Witness List on May 8, 2006 setting forth, basically, that Johnson was an employee of York Water for almost twenty years as a maintenance and emergency person familiar with the systems, protocols and personnel of York Water and that the Water Company has be[en] negligent in inspecting maintaining, repairing and replacing the line and that its uses, procedures and maintenance protocols ¦ do not 4 Johnson did not testify at the arbitration and was not on Appellants witness list at the time the motion in limine was filed with the trial court. 5 protect against breakages of such pipe lines . ¦ Appellants Expert Witness List, at 1; R.R. at 181a. On June 5, 2006, a trial was held before a jury. Appellants presented the testimony of Janet Cassimatis, who testified that she was the person who found the water in the building on the Newberry Street property in January of 2001. Ms. Cassimatis stated that she called Appellants to inform them of the water and then called a plumber. Ms. Cassimatis further testified that in March of 2001, there was a lot of digging on the property, but she was not involved in any part of the sewer repairs. Appellants presented the testimony of Appellant, John G. Bergdoll, III. Bergdoll testified that a call was made to York Water on January 15th around 4:00 p.m. He further testified that someone came out to fix the water main the next day. The parties stipulated that the water was from a water main break. Next, Appellants presented the testimony of Phillip Stover, a selfemployed contractor. Stover testified that Appellants called him concerning a sewer problem. Stover stated that he dug holes at the Market Street property in attempting to locate the sewer clog. However, due to the City giving him the wrong location of the pipe, he ended up digging a lot of holes in the Market Street property. Stover did locate a crack ¦ right next to the main ¦ in the alley in the vicinity of the water line. Notes of Testimony (N.T.), June 5, 2006, at 111; R.R. at 300a. The parties then stipulated as to the monetary amount of the damages, $8,757.71, but not as to recoverability or causation. Appellants then presented the testimony of Charles J. Kelly, III, a carpenter who also did restoration work. Kelly testified that he made repairs to Appellants property in January of 2001, after the water main break. He stated that 6 the repairs amounted to $2,009.30. Kelly did not testify as to his thoughts regarding causation. Appellants next presented the testimony of Robert B. Bissey, Jr., the Superintendent of the Distribution Department for York Water. Bissey testified that a call came in to the dispatcher s office on January 15, 2001 and that a repairman was sent out on January 16, 2001, who located the water main break on West Mason Avenue, approximately 127 feet west of South Newberry Street, and repaired the problem. Lastly, Appellants called Robert Johnson to the stand. Mr. Johnson worked for York Water for twenty years, but was not currently working for York Water. Appellants offer of proof was that Johnson would testify to York Water s procedures and general policies, as the trial court had ruled that he was not qualified as an expert witness. The attorney for York Water objected to such testimony as general policies have nothing to do unless you go the next step and say that the policies and procedures are improper, don t comport to the industry standards or don t comport with that what a reasonably prudent water company would follow. N.T. at 146; R.R. at 336a. The trial court determined that Johnson was not qualified to testify as per Appellants offer of proof. Appellants rested. York Water then moved for compulsory non-suit, with regard to the water main break, on the basis that in order to prove negligence against the water company, you need to prove negligence. There hasn t been any testimony as to they breached any type of standard of care. The only testimony has been there was a water main break. N.T. at 149; R.R. at 339a. The City then moved for a 7 compulsory non-suit on the basis that there was no testimony of actual or constructive notice to the City and also on the basis of governmental immunity.5 On June 5, 2006, after the hearing, the trial court granted the City s and York Water s motions for compulsory non-suit against Appellants. Appellants post-trial motions were denied on October 27, 2006. Appellants appealed. Appellants contend that the trial court erred: (1) in granting a compulsory non-suit as to the City and York Water, in not submitting the case to the jury on the issue of negligence and in not allowing the use of res ipsa loquitur as a basis for a verdict in favor of the Appellants; (2) in not allowing the factual and expert testimony of Johnson, Kelly and Stover; (3) in not allowing Appellants discovery, particularly as to the condition and failures of the one hundred year old water mains and lines used in the City by York Water; (4) in denying Appellants motion to amend the complaint to join Verizon, asserting bad faith, right to attorney s fees, punitive damages, damages for delay, asserting compensatory and punitive damages as to Verizon and York Water and in not providing an evidentiary hearing in reference to Appellants motion concerning concealment; and (5) in ruling in favor of Hartford and against Appellants in summary judgment relating to coverage under the policy and in denying Appellants motion to amend its complaint to assert damages for bad faith and attorney s fees.6 5 Appellants action against York Water was in regard to the water main break. Appellants action against the City was in regard to the sewer back up. 6 Verizon was added to the caption in the present controversy when Appellants appealed the trial court s decision to this court, as one of Appellants issues was whether the trial court erred in not joining Verizon. 8 First, Appellants contend that the trial court erred in granting a compulsory non-suit to the City and York Water, in not submitting the case to the jury on the issue of negligence, in not allowing the use of res ipsa loquitur as a basis for a verdict in favor of the Appellants and in not granting a new trial. In Joyce v. Boulevard Physical Therapy and Rehabilitation Center, 694 A.2d 648, 652-653 (Pa. Super. 1997), our Superior Court discussed the standard of review regarding the entry of a compulsory non-suit and stated in pertinent part as follows: It is proper only if the fact finder, viewing all of the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established. When a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture. (Citations omitted). In order to establish a cause of action for negligence, a plaintiff must prove the following elements: (1) a defendant s duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant s conduct and the resulting injury; and (4) actual damages. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Appellants contend that the trial court erred in determining that Appellants could not make out a negligence claim under the utility exception to the 9 Political Subdivision Tort Claims Act (Act), 42 Pa. C.S. §§8541-8542. Section 8541 of the Act, 42 Pa. C.S. §8541 provides that [e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person. The expressed legislative intent to insulate the Commonwealth and its political subdivisions from liability requires courts to interpret the exceptions to governmental immunity narrowly against injured plaintiffs. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). To qualify for an exception under the Act, a plaintiff is required to prove that (1) the damages would be recoverable under common law or statute against a person not protected by governmental immunity, and (2) the negligent act of the governmental unit or its employees, which caused the injury, falls within one of the limited categories of exceptions to immunity. Starr v. Veneziano, 560 Pa. 650, 657, 747 A.2d 867, 871 (2000). Any harm caused by acts of third parties are outside Section 8541 s scope of liability and thus, may not be imputed to the local agency or its employees. Id. The utility exception to local governmental immunity as set forth in Section 8542(b)(5) of the Act provides: (b) Acts which may impose liability. The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: *** (5) Utility service facilities. A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights-of-way, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient 10 time prior to the event to have taken measures to protect against the dangerous condition. In order for a claimant to recover under this exception, the claimant must prove actual or constructive notice of a dangerous condition of the utility system not only owned by the City but also located within the City s rights-of-ways, which condition created a foreseeable risk of harm. In the present controversy, the trial court determined that Appellants failed to show causation by lay or expert testimony. Thus, they were unable to establish a prima facie case of negligence. After a review of the record, we must agree. The record is void of any testimony regarding the sewer back up which establishes that a dangerous condition was created which was reasonably foreseeable or which implicates a causal connection between the City s conduct and the resulting injury. There was no evidence presented that eliminated any other possible causes of the sewer backup, such as, obstructions from Appellants own property or from one of the neighbors that Appellants alleged were also using the same lateral. The trial court did not err in granting the City s motion for compulsory non-suit.7 As to York Water and the water main break, in order to establish a prima facie case of negligence Appellants were required to show: (1) that they were owed a duty of care, (2) that the duty was breached, (3) that they were injured, and (4) that their injuries were proximately caused by the breached duty. Summers v. Giant Food Stores, Inc., 743 A.2d 498 (Pa. Super. 1999). 7 As the trial court properly granted the City s motion for non-suit, we need not address the issue of whether the City received proper notice from Appellants. 11 The liability of a water distributor in Pennsylvania for damages which result from water escaping from a broken main is determined generally by the rules governing negligence. Pennsylvania Liquor Control Board v. City of Philadelphia, 333 A.2d 497, 498 (Pa. Cmwlth. 1975)(citing Morgan v. Duquesne Borough, 29 Pa. Super. 100 (1905)). As further stated in Pennsylvania Liquor Control Board, [a] plaintiff may ¦ recover if damages resulted from the defendant s faulty or negligent construction of the line, from the defendant s failure to repair a leaking line after actual or constructive notice, or from the defendant s failure to conduct reasonably careful inspections from time to time. Pennsylvania Liquor Control Board, 333 A.2d at 499. Although York Water had a duty to safely deliver water to Appellants property without causing damage to it, there was no evidence that York Water failed to properly inspect, maintain or repair this water main or that the age or construction of the main was a factor in the break. In fact, the line was inspected less than two years previously. Further, Appellants reported the water main leak on January 15, 2001 and York Water scheduled an appointment the next morning to inspect the area. After the break was identified, York Water immediately repaired the line. The repairs took place less than twenty four hours after York Water received notice of a possible leak. Appellants did not present any testimony of industry standard to the contrary. There was no evidence that such conduct is less than due care. Appellants were unable to establish that York Water breached a duty to the Appellants that caused the damage to Appellants property. Thus, the trial court did not err in determining that Appellants did not prove that York Water failed to exercise due care or that they were negligent in constructing, inspecting, maintaining or repairing the water main. 12 Appellants contend that the doctrine of res ipsa loquitur should apply in this case. The doctrine is set forth in Section 328D of the Restatement (Second) of Torts as follows: (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant s duty to the plaintiff. (2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. (3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. Appellants reference Illustration 6 of Section 328D of the Restatement (Second) of Torts which states as follows: 6. A s premises are damaged by water escaping from a main under the street. The main was originally installed by B Company, which has at all times had exclusive control of its inspection and maintenance. There is expert evidence that water mains made of proper material and properly installed, inspected and maintained, do not ordinarily break. Without other evidence, it may be inferred that the escape of the water was due to the negligence of B Company. 13 Illustration 6 is distinguished from the case sub judice, however, because here, there was no expert evidence that water mains made of proper material, properly installed, inspected and maintained do not ordinarily break and there was other evidence that a third party poured cement over the water main. Appellants seem to rely on the fact that it is not disputed that the water main was in the exclusive control of York Water and that water damaged their property, but the doctrine of exclusive control is no longer in effect in Pennsylvania, having been replaced with the Restatement (Second) of Torts. Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). In Pennsylvania Liquor Control Board, our court stated that: Section 328D of the Restatement should be viewed simply as a method of circumstantially proving facts in issue, and that circumstantial evidence could create only a permissible inference of fault in negligence cases and could not result in a shifting of the burden of proof ¦. [T]he plaintiff ¦may be able to avail itself of Section 328D of the Restatement to establish such a permissible inference if, during the course of the trial, it satisfies the three criteria enumerated under Section (1). It is specifically stated in Comment (c) to Restatement Section 328D that it is permissible to conclude that the escape of water from a main does not usually happen unless someone has been negligent. We do believe, however, that both sides should be given an opportunity at trial to present evidence on the question of whether or not an event such as the one which occurred here ordinarily would occur in the absence of negligence. As for the second requirement under Section 328D, it will be incumbent upon the plaintiff at trial to show that other possible causes can be eliminated ¦. [I]t is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, 14 more probably than not, that of the defendant. Restatement Section 328D, Comment (f). The third requirement ¦ [is] that the negligence be within the scope of the defendant s duty to the plaintiff ¦. We would emphasize that an inference of negligence may be drawn only if the three conditions listed under Subsection (1) are established, and the plaintiff will, of course, have to establish them. Moreover, even if they are established, it will still remain for the fact finder to determine whether or not the inference of negligence should be drawn. The burden of proof will not shift to the defendant. ¦. Res ipsa loquitur is neither a rule of procedure nor one of substantive tort law. It is only a short-hand expression for circumstantial proof of negligence a rule of evidence. (Emphasis added and citations omitted). Id. at 499-500. In order for the trial court to permit an inference of negligence to be drawn under the doctrine of res ipsa loquitur, Appellant did not have to eliminate every other possible cause, but did have to reasonably show that some of the other likely causes of the water main break can be eliminated. Appellant produced no evidence that any of the other likely causes of the water main break can be eliminated. Further, Appellants actually identified one of the possible causes of the water main break, other than York Water, when they asserted in their motion to join Verizon. Appellants stated that Verizon may have poured cement over the water main prior to January 16, 2001, possibly causing the water main break. The only evidence presented, basically, is that York Water operated a service line that had a break and that water entered Appellants property. 15 Appellants evidence that their building was flooded by water from a line controlled by York Water does not amount to proof of negligence on the part of York Water. The trial court did not err when it determined that Appellants failed to establish that York Water was negligent. York Water presented testimony that they did not cause the water main to break and Appellants were unable to refute that statement. The cause of this break could not be accurately established by a lay person and Appellants did not establish causation with expert testimony. Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary lay person. Storm v. Golden, 538 A.2d 61, 64 (Pa. Super. 1988). As Illustration 6 of Section 328D of the Restatement (Second) of Torts states, an inference of negligence would result if there was expert evidence that water mains made of proper material and properly installed, inspected and maintained, do not ordinarily break. However, there was no expert testimony in this case. Thus, the trial court properly refused to draw an inference of negligence and was correct in determining that Appellants failed to provide evidence that York Water caused them the harm they alleged in their complaint. The trial court did not err in determining that the Appellants failed to establish the essential elements of a cause of action against the City and York Water and committed no error in granting a compulsory non-suit as to the City with regard to the sewer back up, and as to York Water, with regard to the water main break. Second, Appellants contend that the trial court erred in its order of January 27, 2006, in not allowing the factual and expert testimony of Charles J. Kelly (Kelly) and Phillip Stover (Stover)(collectively, proposed experts) and at the 16 hearing on June 5, 2006, in not allowing the factual and expert testimony of Robert Johnson (Johnson). Whether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court. McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436 (Pa. Super. 1987). In opposing a proposed expert s testimony at trial, the opposing party must show that it has been prejudiced from properly preparing its case for trial. Kurian v. Anisman, 851 A.2d 152, 162 (Pa. Super. 2004). Pennsylvania s standard for qualifying an expert witness is rather liberal. If a witness possesses some knowledge with regard to a subject that is beyond the knowledge, information or skill possessed by an ordinary juror, he or she may testify. Ruzzi v. Butler Petroleum Company, 527 Pa. 1, 588 A.2d 1 (1991). The court asks whether the witness has sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth. Id. at 5-6. The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. Miller v. Brass Rail Tavern, Inc., 422 Pa. 474, 480-81, 664 A.2d 525, 528 (1995). In its order of January 27, 2006, the trial court ruled that Kelly had sufficient skill, knowledge and experience to assist the ultimate fact-finder regarding the extent of damage, the costs of repair, the cause of the damage in general terms and that the damage was caused by water, as Kelly had worked as an insurance estimator and an independent contractor for over thirty years, but almost exclusively on carpentry and home improvements. Trial Court Opinion, January 27, 2006, at 5; R.R. at 160a. The trial court was acting within its proper discretion 17 when it prohibited Kelly from giving expert testimony as to the source of the water, as that information did not fall within his expertise. Although Stover had been employed as an independent contractor installing and repairing septic systems, there was no evidence of his expertise with sewer systems. The trial court found that Appellants offer of Stover s testimony at arbitration as proof of his qualifications was insufficient to determine any expertise as far as the causes of sewage blockages. Stover did not have any special training skill, knowledge or experience with regard to sewer blockages and their causes. The trial court did not err in ruling that Stover was prohibited from testifying as an expert. Stover was, however, allowed to testify as a witness to the facts known by him as a result of his work on the sewer problem on Appellants property. Trial Court Opinion, January 27, 2006, at 6; R.R. at 161a. The trial court did not err in limiting the testimony of Kelly and Stover, as the source of the water or the cause of the sewage blockage was not within their expertise. With regard to Johnson, at the hearing on June 5, 2006, the trial court found that the Plaintiff s Expert Witness List did not amount to a report from an expert. The trial court stated that the List, which was signed by counsel for Appellants, was not an expert report from Johnson as an expert, but merely a statement by counsel that this is what he s going to testify to. N.T. at 9; R.R. at 198a. The List did not set forth any facts that Johnson would rely upon to support any opinions (which were also not set forth) that Johnson might give. The List did not even include a curriculum vitae for Johnson. Thus, the only evidence that Johnson was educated or trained in the source of water problems was 18 counsel s statement that Johnson was employed by York Water, without much reference to any other relevant credentials. The List also failed to amount to an expert report requested by counsel for York Water pursuant to Pa. R.C.P. No. 4003.5(a)(1)(a) , which states in pertinent part as follows: (a)(1) A party may through interrogatories require (a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and (b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert. In accordance with Pa. R.C.P. No. 4003.5, the expert must state the subject matter on which the expert is expected to testify and ¦ the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The trial court found that Appellants did not provide Appellees any expert report from Johnson. As such, Johnson was prohibited from testifying as an expert. The trial court found that Appellants failed to provide the expert report, prior to trial, that it ordered, which would show that Johnson possessed the requisite knowledge, skill and experience to testify as an expert at trial. 19 Here, although required to do so by the trial court, Appellants did not provide Appellees with an expert report authored by Johnson. The trial court did not abuse its discretion in limiting Johnson s testimony. See Pa. R.C.P. No. 4003.5 explanatory comment. Third, Appellants contend that the trial court erred in not allowing Appellants discovery, particularly as to the condition and failures of the one hundred year old water mains and lines used in the city by York Water. The trial court determined that there is no hard and fast timetable for discovery. Trial Court Opinion, October 21, 2005, at 10; R.R. at 85a. The trial court considered Appellants contention as one in which Appellees filed a motion for summary judgment and Appellants objected based upon the belief that they did not have a chance to adequately conduct discovery. Appellants had filed their complaint on November 27, 2001 and their requests and interrogatories were issued on July 1, 2004, over two and a half years after initiating the suit and almost one year after certifying the case for arbitration. The trial court stated that it took into consideration the fact that Appellants, as late as February 19, 2004, stated that they needed additional discovery. However, the trial court found that Appellants did not pursue their claim with reasonable diligence and failed to set forth an adequate reason as to why their requests and interrogatories were not issued in a more timely fashion. Pa. R.C.P. No. 1035 provides in pertinent part as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of 20 action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. When York Water filed motions for summary judgment, Appellants responded to those motions. Under Pa. R.C.P. No. 1035.3(c), [t]he court may rule upon the motion for judgment or permit affidavits to be obtained, depositions to be taken or other discovery to be had or make such other order as is just. The trial court, having reviewed the record, did not err or abuse its discretion in denying Appellants request for additional discovery after finding Appellants had failed to pursue this matter with due diligence. Fourth, Appellants contend that the trial court erred in denying Appellants motion to join Verizon and to amend the complaint as to Verizon and York Water to assert bad faith, right to attorney s fees, compensatory damages, damages for delay, punitive damages and in not providing an evidentiary hearing in reference to Appellants motion concerning concealment and agreements involving York Water, Verizon and/or its insurers in reference to matters regarding the statute of limitations for joining Verizon and punitive damages. Pa. R.C.P. No. 2252 (a)(4) states in part that a plaintiff may join any defendant or additional defendants on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff s cause of action is based. Appellants allege that they filed the praecipe to join Verizon as soon as they became aware that there could have been a third 21 party involved in the breaking of the water line. However, they did not become aware of Verizon s involvement until August 12, 2003, the date the testimony of a York Water employee was taken during the arbitration hearing. Thus, they believe, that the statute of limitations did not begin to run for these claims against Verizon until the date of the arbitration. Pa. R.C.P. No. 2229 governs the joining of a defendant by a plaintiff and states in pertinent part as follows: (b) A Plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action. When a cause of action is not discoverable, the statute of limitations does not begin to run until it could have been discovered through reasonable diligence. Baumgart v. Keene Building Products Corp., 542 Pa. 194, 666 A.2d 238 (1995). The trial court determined that Appellants failed to act with due diligence. The trial court stated that the report that first revealed that the break was likely caused by a third party pouring cement over the water main, was dated January 16, 2001. The trial court determined that with due diligence, Appellants should have sought to institute discovery prior to July 1, 2004. The trial court found that had Appellants been diligent, they would have discovered the existence and the identity of a third party prior to the arbitration and prior to the expiration of the two year statute of limitations. Also, the trial court was correct in not permitting Appellants to join Verizon as a defendant due to their claim of active concealment. In Pennsylvania, 22 a plaintiff must bring a cause of action for negligence within two years. 42 Pa. C.S. §5524(2). The statute of limitations begins to run as soon as the right to institute and maintain a suit arises. The statute of limitations is not tolled for a lack of knowledge, a mistake or a misunderstanding. However, if a defendant or his agent actively misleads a plaintiff as to the identity of the proper defendants until after the statute of limitations has expired, the court would toll the statute of limitations, but the plaintiff would have the burden of proving active concealment through clear and convincing evidence. Cappelli v. York Operating, 711 A.2d 481, 484 (Pa. Super. 1998). In the present controversy, Appellants did not present any evidence that York Water concealed the identity of the unknown third-party or even that Verizon was the entity that poured cement over the water main. Appellants simply referenced the opinion of a York Water employee given at arbitration. As Appellants failed to show by clear and convincing evidence that York Water concealed the identity of the unknown third-party, the statute of limitations clearly barred the joining of Verizon to this action. Id. The trial court did not err in failing to join Verizon after the statute of limitations had expired. Appellants further contend that they should be permitted to amend their pleading to include a claim for punitive damages. Appellants admit that the cause of action and the specific duty to Appellants has not changed and that the cause and the injury remain the same. However, Appellants believe that the doctrine of fraudulent concealment serves to toll the running of the statute of limitations because Verizon and York Water have intentionally, willfully, wantonly and negligently agreed and conspired to prevent Appellants and others from recovering damages and compensation by precluding them from resources, 23 knowledge, data and information concerning the causes, conditions and parties responsible for the damages claimed. The trial court properly denied Appellants motion to amend their complaint and join Verizon, as the statute of limitations had run. The right to amend pleadings is within the discretion of the trial court. However, amendments will not be permitted if they violate the law or prejudice the rights of the opposing party. Jacob v. New Kensington Y.M.C.A., 459 A.2d 350 (Pa. Super. 1983). Further, an amendment to a complaint may not introduce a new cause of action after the statute of limitations has run. Willett v. Evergreen Homes, Inc., 595 A.2d 164 (Pa. Super. 1991). The statute of limitations is two years for an action averring negligence. Appellants attempted to amend their complaint five years after the occurrence of the event that damaged their property. If the averments of the initial complaint allege only ordinary negligence, a plaintiff may not later seek to amend the complaint to aver reckless conduct and seek the recovery of punitive damages. Willett. Appellants complaint alleged ordinary negligence. The trial court did not abuse its discretion by refusing to permit Appellants to amend the complaint and aver intentional, willful and wanton negligence five years after the occurrence of the event in order to claim punitive damages. Although in Daley v. John Wanamaker, Inc., 464 A.2d 355 (Pa. Super. 1983), the Superior Court stated that a new cause of action does not exist if a plaintiff s amendment merely adds to or amplifies the original complaint, Appellants were attempting to magnify the scope of the original complaint by adding the words intentional, willful, and wanton in order to claim punitive damages. The trial court did not err in denying Appellants motion to amend their complaint in this instance. 24 Finally, Appellants contend that the trial court erred in ruling in favor of Hartford and against Appellants in summary judgment relating to coverage under the policy and in reference to Appellants motion to amend its complaint to assert damages for bad faith and for attorney s fees. Summary judgment is appropriate where there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by discovery or expert report ¦. Pa. R.C.P. No. 1035.2(1). The court is not to decide issues of fact, but merely to determine whether any such issues exist. Boring v. Erie Insurance Group, 641 A.2d 1189 (Pa. Super. 1994). Summary judgment is also warranted if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce sufficient evidence of facts essential to the cause of action or defense to submit the question to a jury. Pa. R.C.P. No. 1035.2(2). Our review of a trial court s order granting summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Irish v. Lehigh County Housing Authority, 751 A.2d 1201 (Pa. Cmwlth. 2000), petition for allowance of appeal denied, 567 Pa. 732, 786 A.2d 991 (2001). In reviewing a grant of summary judgment, an appellate court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. State Farm Mutual Automobile Insurance Company v. Universal Underwriters Insurance Company, 549 Pa. 518, 701 A.2d 1220 (1997)(citation omitted). Appellants contend that their insurance policy with Hartford is ambiguous and therefore, should be read to include the damages at issue in this 25 case. Appellants argue that the water damage to their property was caused by a break in a high pressure water main line and was not water under the ground surface seeping through basement walls. We note that unambiguous terms of insurance policies are to be construed, by the court, in accordance with their plain, common and ordinary meaning while giving effect to all other provisions of the policy. Delaware County Construction Company v. Safeguard Insurance Company, 228 A.2d 15, 17 (Pa. Super. 1966). When a policy is reasonably susceptible to two interpretations it is to be construed in favor of the insured and against the insurer. Erie Insurance Exchange v. Transamerica Insurance Company, 516 Pa. 574, 580, 533 A.2d 1363, 1366 (1987). The language of the insurance policy in this matter is set forth in pertinent part as follows: A. COVERAGE We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations (also called described premises in this policy) caused by or resulting from any Covered Cause of Loss. *** 3. Covered Causes of Loss RISKS OF DIRECT PHYSICAL LOSS unless the loss is: (a) Excluded in Section B., EXCLUSIONS; or *** B. EXCLUSIONS 26 1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. *** g. Water (1) Flood, surface water ¦. *** (4) Water under the ground surface pressing on, or flowing or seeping through: (a) Foundations, walls, floors or paved surfaces; (b) Basements, whether paved or not; or (c) Doors, windows or other openings. But if loss or damage by fire, explosion or sprinkler leakage results, we will pay for that resulting loss or damage. The trial court determined that Hartford s policy was not ambiguous. The trial court stated that the policy was typical , that it covered everything that could possibly happen to the insured property except those things that are specifically exempted. Trial Court Opinion, October 21, 2005, at 8; R.R. at 83a. The trial court determined that Hartford s policy specifically excluded the event that damaged Appellants property. 27 A review of the record reveals that the policy is a standard form property insurance policy which insures Appellants against direct physical loss or damage, unless the loss is excluded by a subsequent policy provision. Section A of the policy grants the insured coverage subject to Section B exclusions. Section B contained a clear exclusion for, inter alia, damage caused directly or indirectly by ¦[f]lood, surface water ¦[or] ¦[w]ater under the ground surface pressing on, or flowing or seeping through ¦[f]oundations, walls, floors, or paved surfaces ¦[b]asements, whether paved or not; or ¦[d]oors, windows or other openings. On its face, there is nothing particularly confusing or ambiguous about the general design of the policy, or that exclusion in particular. The trial court did not err in granting Hartford s motion for summary judgment.8 Accordingly, we affirm the decision of the trial court. JIM FLAHERTY, Senior Judge 8 Appellants further contend that the trial court erred after it had granted summary judgment, in not granting their motion to amend their complaint to assert damages for bad faith and attorney s fees against Hartford. As the trial court did not err in granting summary judgment, the issue of amending the complaint to assert damages for bad faith and attorney s fees against Hartford is moot and the trial court was correct in so finding. 28 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John G. Bergdoll, and Linda E. Bergdoll, Appellants v. The York Water Company, City of York, Hartford Insurance Company and Verizon : : : : : : : : : No. 2169 C.D. 2006 ORDER AND NOW, this 1st day of April, 2008, the order of the Court of Common Pleas of York County in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge

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